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28 July 2020
In Senior Taxi Aereo v Agusta Westland,(1) the High Court brought some clarity to the rules applicable to defendants domiciled in states that are party to the EU Recast Brussels Regulation (1215/2012). Following the decision, the court has jurisdiction to hear a claim against a non-UK defendant under Article 8(1) of the regulation only if the claim against the UK-domiciled anchor defendant is sustainable.
Senior Taxi Aereo (STA) purchased a helicopter from one of the defendants, an Italian manufacturer. The helicopter was involved in a fatal crash and STA claimed from the defendants compensation payments that they had made; the defendants included an English company in the same group as the Italian manufacturer. The English company was the claimants' anchor defendant. STA argued that the court had jurisdiction over the Italian manufacturer under Article 8(1) of the EU Recast Brussels Regulation. Article 8(1) states that a claim can be brought in the United Kingdom against entities domiciled in other EU member states where:
STA argued that the UK court should assert jurisdiction over the Italian helicopter manufacturer under Article 8(1), but this was rejected; the claimants had been required to demonstrate that their claim against the UK-domiciled anchor defendant was sustainable, but they failed to do this.
Before Senior Taxi, the sustainability of a claim against a non-UK defendant was irrelevant in determining whether a court had jurisdiction under Article 8(1). However, it was an open question whether a claimant had to show that the claim against a UK anchor defendant was sustainable.
The parties accepted that if STA brought proceedings against the English defendant purely to bring the Italian manufacturer into the jurisdiction, or knew that the claim against it was hopeless, they could not rely on Article 8(1). In addition, the court decided that it was possible to rely on Article 8(1) only if the claim against the English defendant was sustainable.
If the claim against the English defendant was unsustainable, there was no risk that a judgment would be obtained against it in the UK courts, which could be inconsistent with a judgment against the Italian defendant elsewhere. As such, there was no risk of irreconcilable judgments and Article 8(1) was not engaged. The court left open the possibility that if the claim against the anchor defendant was prohibited by a procedural rule, as opposed to being unsustainable on the merits, Article 8(1) may still apply.
While the EU Recast Brussels Regulation will cease to apply when the United Kingdom leaves the European Union, the Senior Taxi test will likely continue to apply where jurisdiction is sought over EU-domiciled co-defendants. The United Kingdom intends to accede to the Lugano Convention which contains a similar provision to Article 8(1) of the EU Recast Brussels Regulation and is likely to be interpreted consistently with the EU Recast Brussels Regulation.
Senior Taxi has also created a degree of consistency in the approach to claims against non-anchor defendants in other jurisdictions. Claims can be commenced against co-defendants in states which are not party to the EU Recast Brussel Regulation only if, among other things, the claim against the UK anchor defendant has a real prospect of success,(2) which is similar to the Senior Taxi test.
Now that the court has reached a decision on the requirements of Article 8(1), where it is used as a basis to join an EU-domiciled defendant to proceedings, parties should carefully consider the merits of the claim against the UK anchor defendant.
For further information on this topic please contact Emma West or Simon Hart at RPC by telephone (+44 20 3060 6000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
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